Influencer Liability: Will New-Age Litigation Net Celebrity Spokespeople?

By: Lauren Scribner

The “influencer economy,” in which so-called “content creators” share user-generated content such as livestreams or short-form film, is showing no signs of slowing down.  Currently valued north of $250 billion, it is projected to reach nearly $500 billion by 2027.[1] “Creators earn income primarily through direct branding deals to pitch products as an influencer; via a share of advertising revenues with the host platform; and through subscriptions, donations and other forms of direct payment from followers.  Brand deals are the main source of revenue at about 70%, according to survey data.[2]

Indeed, a recent survey indicates that 64% of consumers are “more willing” to purchase a product when it is marketed by their favorite influencer.[3]  And “9 in 10 marketers say sponsored influencer content outperforms brand content in terms of engagement,” so much so that from a marketing perspective, “[t]he future belongs to brands that embrace influencers.”[4]

Despite their domineering presence, there is remarkably little legal authority about the extent of an influencer’s liability in lawsuits that involve the brand they promote.  But because typically, influencers are given a specific message to communicate and guidance for how to communicate it, an influencer is just a third-party providing a service for a brand.  The law should therefore (generally) treat them as it does any other third-party service provider.  Aside from a few obvious caveats, such as violating Federal Trade Commission (FTC) disclosure obligations,[5] committing trademark infringement,[6] and broadcasting blatantly illegal activity,[7] influencers should generally not be liable to the same extent as the owners and operators of the brand they promote.

From a logistical and efficiency perspective, this makes sense.  Attacking the brand, rather than the influencer, targets the allegedly problematic message at the source, rather than piecemealing a challenge by pursuing one influencer at a time.  An analysis of the FTC’s tendency to target brands over influencers sheds light on this approach: “it appears based on its previous conduct that FTC would prefer to target its enforcement efforts against advertisers as opposed to social media influencers. From a regulatory perspective this may be the most efficient method of enforcement—one action against a marketer could in theory correct multiple social media influencer posts if the marketer can control the content of the posts.” [8]

Cases involving advertisements also reflect this.  Take the example of Colgate v. JUUL Labs, Inc., in which the plaintiff consumers alleged false advertising claims, among others, against JUUL Labs, the manufacturer of an electronic nicotine delivery system consisting of an electronic cigarette and nicotine solution.  Plaintiffs challenged JUUL’s marketing strategy targeting youth, specifically, its use of influencers and celebrity Katy Perry to “amplify its message . . . .that its product was cool, while hiding material information about the dangers associated with using the product.”[9]  The Colgate court determined the plaintiffs’ false advertising claims withstood a motion to dismiss because “JUUL’s advertising contained both affirmative representations and omissions likely to mislead reasonable consumers about the nicotine content, addictiveness, and health risks of its products.”[10]

Implicit in the Colgate court’s analysis is the acknowledgement that JUUL Labs—not individual influencers that it hired to promote its products—should be responsible for its own advertising campaign.  In other words, even though posts by individual influencers did not contain the appropriate warnings about the addictiveness and level of nicotine in JUUL products, the plaintiffs pursued JUUL for its failure to adequately warn consumers, not the influencers hired to promote JUUL.

Similarly, in Luman v. Theismann, a plaintiff class unsuccessfully attempted to pursue a celebrity spokesperson in a products liability action.  The Ninth Circuit upheld dismissal of the putative plaintiff classes’ products liability claims under federal and California law, determining in part that because the defendant was “merely the celebrity spokesperson for” and “not the seller of” the products at issue, the district court’s dismissal of the claims against him was proper.[11]  In other words, the defendant spokesperson’s connection to the product at issue was too remote to establish liability because the spokesperson was merely paid to promote a product that he was not himself selling.

Courts have declined to impose liability on third-party service providers in other contexts as well.  For example, with civil Racketeer Influenced and Corrupt Organizations Act (RICO) claims, a third-party who is “simply performing services for an enterprise, even with knowledge of the enterprise’s illicit nature, is not enough to subject an individual to . . . liability . . . instead, the individual must have participated in the operation and management of the enterprise itself.”[12]  Moreover, even service providers who play “important” or “essential” roles in enabling an enterprise’s unlawful conduct are still too attenuated to be subjected to RICO liability.[13]  Similarly, courts have been unwilling to impose liability on third-party service providers for an alleged civil conspiracy where there is no evidence that the service provider entered into an agreement to act unlawfully.[14]

What all of these cases have in common is a determination that a third-party service provider is simply not liable to the same extent as the party it is providing the service to.  In other words, liability requires a closer connection to directing and participating in the alleged wrongdoing than what most third-party service providers are engaged to carry out.  Generally (don’t forget the caveats!) this legal analysis should be no different for an influencer, who is simply compensated to provide a service—namely, advertising—for a brand.  And if “[t]he future belongs to brands that embrace influencers,”[15] it is likely that the question of the extent of an influencer’s blameworthiness for promoting harmful products will tilt the balance towards liability in coming years.

[1] The creator economy could approach half-a-trillion dollars by 2027, Goldman Sachs: Technology (Apr. 19, 2023), https://www.goldmansachs.com/insights/articles/the-creator-economy-could-approach-half-a-trillion-dollars-by-2027 (last accessed Dec. 8, 2025).

[2] Id.

[3] Schaefer, Aubree,  The future of influencer marketing: 4 trends for 2026 and beyond, Sprout Blog: Influencer Marketing (Oct. 2, 2025), https://sproutsocial.com/insights/future-influencer-marketing/#:~:text=What%20is%20the%20future%20of,industry%20for%20creators%20and%20marketers (last accessed Dec. 8, 2025).

[4] Id.

[5] See 16 C.F.R § 255.

[6] See, e.g., Court Holds that Influencers Can be Liable for Use of a Brand’s Infringing Trademark, JD Supra (Sep. 23, 2021), https://www.jdsupra.com/legalnews/court-holds-that-influencers-can-be-8414623/ (last accessed Dec. 8, 2025); Palmer, Annie, Amazon sues two influencers for peddling counterfeit goods on Instagram and TikTok, CNBC: Tech (Nov. 12, 2020), https://www.cnbc.com/2020/11/12/amazon-sues-influencers-for-allegedly-marketing-counterfeits.html (last accessed Dec. 8, 2025).

[7] See, e.g., McEntyre, Nicholas, Bikini-clad Brazilian influencer Melissa Said breaks silence after she’s arrested, accused of being drug trafficking queen, N.Y. Post: World News (Oct. 26, 2025), https://nypost.com/2025/10/26/world-news/brazilian-influencer-melissa-said-breaks-silence-after-shes-arrested-accused-of-being-drug-trafficking-queen/ (last accessed Dec. 8, 2025); Ingram, David, A popular gun influencer conspired to illegally import machine guns. He still has a home on YouTube. NBC News (Feb. 18, 2024), https://www.nbcnews.com/tech/internet/larry-vickers-update-gun-youtube-sentence-guilty-plea-case-rcna138491 (last accessed Dec. 8, 2025); Fletcher, Robert, ACMA warns influencers of multi-million-dollar penalties for promoting illegal gambling, iGaming Business (June 24, 2025), https://igamingbusiness.com/marketing-affiliates/acma-penalties-influencers-illegal-gambling/ (last accessed Dec. 8, 2025).

[8] Tamany Vinson Bentz & Carolina Veltri, The Indirect Regulation of Influencer Advertising, 75 Food and Drug L.J., no. 2, 185, 188 (2020).

[9] 402 F. Supp. 3d 728, 740, 742 (N.D. Cal. 2019).

[10] Id. at 748.

[11] See 647 F. App’x 804, 807–08 (9th Cir. 2016).

[12] Goren v. New Vision Int’l, Inc., 156 F.3d 721, 728 (7th Cir. 1998) (emphasis added).

[13] See e.g., Moss v. BMO Harris Bank, N.A., 258 F. Supp. 3d 289, 308 (E.D.N.Y. 2017).

[14] See e.g., Price v. Lakeview Loan Servicing, LLC, 2021 WL 1610097, at *12 (M.D. Fla. Apr. 26, 2021), aff’d, 2022 WL 896816 (11th Cir. Mar. 28, 2022); Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 141–42 (Tex. 2019); Abacus Federal Savings Bank v. Lim, 905 N.Y.S.2d 585, 588 (App. Div. 1st Dep’t 2010); DeBlasio v. Pignoli, 918 A.2d 822, 826 (Pa. Commw. Ct. 2007); Banco Popular N. Am. v. Gandi, 876 A.2d 253, 364 (N.J. 2005); Applied Equip. Corp. v. Litton Saudi Arabia, Ltd., 860 P.2d 454, 458 (Cal. 1994); In re Grail Semiconductor Sedgwick Fundingco, LLC v. Newdelman, 2022 WL 194384, at *33 (Bankr. E.D. Cal. Jan. 20, 2022) (quoting 11 Russell J. Davis, Ill. Law and Prac., Conspiracy § 1 (October 2021)).

[15] Schaefer, supra note 3.